January 10, 2006

Alito on Eavesdropping And The Balance Of Power

Specter asks this essential question: does the Constitution permit the president to engage in domestic wiretapping without specific authorizing legislation?

Is FISA the only vehicle by which a president can do this -- like Specter believes -- or does the president act with implicit Constitutional authority by dint of his grant of executive power and his role as commander-in-chief? Does the congressional authorizaton for the use of force grant the president implicit authority not contained within the letter or spirit of the legislation?

Alito resists answering because he expects to hear cases like this before the court.

Sen. Pat Leahy clearly wants Alito to say whether he believes a president, acting as commander in chief, can disregard Congress's intent to immunize soldiers from prosecution (for torture).

Alito: "Sometimes, issues of executive power arise and they have to be analyzed under the framework that Justice Jackson laid out." It's a "twilight zone," Alito says, using language from Jackson's opinion -- "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."

Alito says he'd have to see what the facts are. Did the Congress act unconstitutionally? Did the president? Just because Congress says the President is acting illegally, is he?

Posted at 09:59 AM

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